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Common Carrier Regulation

The Non–First Amendment Law of Freedom of Speech

The First Amendment dominates debate about freedom of speech in the United States. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not. This Article explores the history and present-day operation of this non–First Amendment body of free speech law. Doing so changes our understanding of both the past and the present of the American free speech tradition. It reveals that there was more legal protection for speech in the nineteenth century than scholars have assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires, than what we commonly assume. Recognizing as much is important not only as a descriptive matter but also as a doctrinal one. This is because in few other areas of constitutional law does the Supreme Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important nonconstitutional mechanisms that legislators have traditionally used to promote it. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present and our regulatory past — and is therefore able to proclaim a commitment to laissez-faire principles that, in reality, it has never been able to sustain.

Introduction

The First Amendment dominates both popular and scholarly discussion of freedom of speech in the United States. If one takes a look at the tremendous amount of writing that has been produced to analyze, celebrate, or deplore how expressive freedom has been legally guaranteed in this country, one will quickly see that the vast majority of it focuses on the Free Speech and Press Clauses of the First Amendment and the judicial opinions that interpret and give those clauses force.

It is easy enough to understand why discussion of freedom of speech and press has tended to be so First Amendment–centric.1×1. Although the text of the First Amendment distinguishes between the “freedom of speech” protected by the Free Speech Clause and the “freedom of press” protected by the Press Clause, in its First Amendment cases, the Court has generally refused to distinguish between the two. See Sonja R. West, Awakening the Press Clause, 58 UCLA L. REV. 1025, 1027–29 (2011). The result has been to make freedom of press and freedom of speech merely different ways of describing the same underlying bundle of rights. Although good arguments have been made for why it is a mistake to equate freedom of speech with freedom of press, for simplicity’s sake, and in order to better reflect how the terms are used in contemporary constitutional discourse, in this Article I do just that. References to freedom of speech should be understood to include the rights that might other-wise be understood, and historically were referred to, as freedom of press. The Free Speech Clause of the First Amendment has for decades now served as one of the most powerful mechanisms of individual rights protection in the Federal Constitution. It has been interpreted to apply to a dizzying variety of kinds of speech and expressive conduct. Today, the First Amendment protects not only explicitly political speech and journalism but also religious speech, artistic speech, scientific speech, most forms of popular entertainment, nonobscene pornography, commercial advertisements, and even nude dancing.2×2. See Genevieve Lakier, Sport as Speech, 16 U. Pa. J. Const. L. 1109, 1111, 1114 (2014). The strength and size of the modern First Amendment have given it a powerful cultural status.3×3. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1790 (2004). They also make it easy to equate the free speech tradition in the United States with the First Amendment tradition.4×4. See, e.g., Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America 6 (Jamie Kalven ed., 1988) (referring to the First Amendment tradition as simply the “free speech tradition”); Owen M. Fiss, Essay, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1405 (1986) (conflating Professor Kalven’s “free speech tradition” with First Amendment jurisprudence). Like the sun, the First Amendment’s size and brightness tend to blot out all else.

It is nevertheless a mistake to presume that the only legal mechanism that protects freedom of speech in the United States is the First Amendment. This is because, as the Supreme Court has recognized, the federal courts do not possess a monopoly over the interpretation and enforcement of the rights to freedom of speech and press or the penumbral right of association. In its 1976 decision Hudgens v. NLRB,5×5. 424 U.S. 507 (1976). the Court made clear that “statutory or common law may in some situations extend protection or provide redress against [efforts] to abridge . . . free expression” even when the First Amendment does not do so.6×6. Id. at 513. A few years later, in PruneYard Shopping Center v. Robins,7×7. 447 U.S. 74 (1980). the Court similarly concluded that state constitutions might provide “rights in expression” that are “more expansive than those conferred by the Federal Constitution.”8×8. Id. at 81; see also id. at 88.

The result is that speakers and listeners can, and sometimes do, receive more protection for their speech, press, and expressive association under state constitutional law, state and federal statutory law, and state common law than they do under the First Amendment. Although state constitutional law has proven to be less of an important source of free speech protection than some hoped or predicted after the PruneYard decision,9×9. Julian N. Eule & Jonathan D. Varat, Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse, 45 UCLA L. Rev. 1537, 1579 (1998). courts in New Jersey, California, and a number of other states have for many decades now interpreted state constitutional guarantees of expressive freedom to confer rights that the First Amendment does not confer.10×10. See, e.g., Fashion Valley Mall, LLC v. NLRB, 172 P.3d 742, 749 (Cal. 2007); Green Party of N.J. v. Hartz Mountain Indus., Inc., 752 A.2d 315, 323 (N.J. 2000). More importantly, local, state, and federal legislators have over the course of the past two centuries enacted hundreds, perhaps even thousands, of laws that are intended to protect the same values and interests that the First Amendment protects. In some cases, legislators have also empowered regulatory agencies to do the same. To focus solely on the protection that the First Amendment provides is therefore to misunderstand how freedom of speech is actually understood and legally protected in the United States today.11×11. This Article leaves entirely undiscussed another, also extremely important, domestic free speech tradition: namely, the tradition of private self-regulation that promotes free speech values in schools and universities, in the private media, and in a variety of other institutional settings. Like the free speech laws documented in this Article, institutional free speech policies play an important role in promoting free speech values in contexts where the First Amendment does not do so, particularly in the private sphere. They also serve as the terrain on which important debates about the meaning of free speech occur. To fully understand how freedom of speech is imagined, contested, and protected in the United States, one would need therefore to understand the relationship between three important strands of free speech law — the First Amendment, the non–First Amendment, and the private. For purposes of space, however, I leave exploration of this important third strand of the American system of free expression for another day.

This Article attempts to correct this misunderstanding — or, at least, to begin the process of doing so — by exploring both the genealogical roots and the present-day operation of what it calls the non–First Amendment law of freedom of speech.12×12. As will become evident, in what follows I provide only a cursory account of this capacious, contentious, and diverse body of free speech law. This Article is intended to open up exploration of this free speech tradition, not to provide the last word on it. In doing so, I follow the lead of two scholars who previously suggested, albeit in a much less fleshed-out form, the existence of a non–First Amendment free speech tradition. See Cynthia L. Estlund, Free Speech and Due Process in the Workplace, 71 Ind. L.J. 101, 107 (1995); Tim Wu, Brookings Inst., Is Filtering Censorship? The Second Free Speech Tradition 2 (2010), https://www.brookings.edu/research/is-filtering-censorship-the-second-free-speech-tradition“>https://www.brookings.edu/research/is-filtering-censorship-the-second-free-speech-tradition”>https://www.brookings.edu/research/is-filtering-censorship-the-second-free-speech-tradition [https://perma.cc/7Y7S-465L]. The term refers to the many local, state, and federal laws that work to protect the same interests that the Free Speech and Press Clauses of the First Amendment protect. These laws do so not by simply enforcing the speech rights and speech-facilitating duties that the First Amendment requires, but by granting rights and imposing duties that the First Amendment does not require, or by intervening in the speech marketplace in other ways not mandated by the First Amendment cases.

As I show in what follows, this body of non–First Amendment free speech law is extensive in its scope and significant in its effects. It also has deep roots in our regulatory traditions. In fact, the non–First Amendment free speech tradition is for all practical purposes older than the First Amendment tradition itself. In contrast to the First Amendment tradition, which began to emerge in its modern form only in the early decades of the twentieth century, legislatures acted to protect the interests that we today recognize the First Amendment as protecting beginning in the mid-eighteenth century, and continued to do so throughout the nineteenth and twentieth centuries in all sorts of ways.

This fact complicates the dominant narratives of the history of freedom of speech in the United States, which tend to depict the years prior to the early twentieth century as a period in which there was little legal protection for expressive freedom.13×13. See, e.g., Paul L. Murphy, The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR 4 (1972) (“In America, freedom of speech . . . [was] an operational reality largely outside the area of either legal definition or restriction from the adoption of the Bill of Rights until World War I. . . . [F]reedom of speech was treated as a dearly won prize, protected in a symbolic trophy case, but not used from day to day.”); Lawrence M. Friedman, Lecture, The Constitution and American Legal Culture, 32 St. Louis U. L.J. 1, 5–6 (1987) (noting that very few free speech cases reached the courts in the nineteenth century, and concluding that “structured controversy over the limits of free speech was largely absent as an overt political issue”). It is absolutely true that eighteenth- and nineteenth-century courts tended to interpret constitutional free expression guarantees to grant speakers and listeners few rights against the government.14×14. See David M. Rabban, The First Amendment in Its Forgotten Years, 90 Yale L.J. 514, 523–24 (1981). But legislators proved much less insensitive to the need to protect expressive freedom, and the democratic freedoms that it enabled, against both government and private power than did the courts. Indeed, what we find during this period is significant and enduring legislative concern about the threat that the concentration of economic power produced by the increasing industrialization of the U.S. economy posed to the expressive freedom of the less powerful, as well as to the well-being of the institutional press.15×15. See, e.g., infra p. 2320. The result was the creation of a rich body of nonconstitutional free speech law. To write legislative efforts to promote freedom of speech and press out of the history of freedom of speech in the United States is therefore to miss much of the story.

Paying attention to the non–First Amendment law of freedom of speech not only changes our understanding of the history of the free speech tradition in the United States, however. It also complicates our understanding of its present. This is because what it shows us is that the modern free speech tradition is considerably more pluralist in its conception of the right, and more majoritarian in its operation, than we are accustomed to recognizing.

In its First Amendment cases, the Court has articulated, since at least the 1940s, a strongly counter-majoritarian and court-centric conception of freedom of speech. It has argued that what the ratification of the First Amendment was intended to do was remove the question of what freedom of speech means from “the vicissitudes of political controversy” and transform it instead into “a legal principle to be applied by the courts.”16×16. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). The Court has insisted, more generally, that the meaning of freedom of speech is not something that “may . . . be submitted to vote” or made to “depend on the outcome of . . . elections.”17×17. Id.

The Court has never explained how its view of freedom of speech as a right whose meaning must “depend on the outcome of no elections”18×18. Id. coexists with its recognition that often popularly elected state courts and state and federal legislatures may grant rights of free expression that the First Amendment does not.19×19. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980); Hudgens v. NLRB, 424 U.S. 507, 513 (1976). Nevertheless, scholars have largely accepted the Court’s claim that what freedom of speech means in the United States — at least as a legal matter — is what the First Amendment cases say it means.20×20. The tendency to believe the Court that it has a monopoly over the meaning of the free speech right is as common among the critics of the modern First Amendment tradition as it is among those who believe the tradition to be a “worthy” one. See, e.g., Louis Michael Seidman, Essay, Can Free Speech Be Progressive?, 118 Colum. L. Rev. 2219, 2220 (2018) (defining the American free speech tradition to mean the First Amendment tradition, and concluding that it both has not been and likely can never be progressive); see also Fiss, supra note 4, at 1405–08 (same). But this is a mistake.

In fact, once we look beyond the First Amendment cases, what we find is significant debate, from the eighteenth and nineteenth centuries until today, about what freedom of speech means and requires. More than that: what we find are legal protections for speech and association that are based on a different conception of freedom of speech than that given voice in the First Amendment cases — one that is much more concerned with the threat that private economic power poses to expressive freedom, and much less laissez-faire in its understanding of the government’s responsibilities vis-à-vis the marketplace of ideas.

The non–First Amendment laws, policies, and judicial decisions chronicled in this Article do not, in other words, simply build on top of the federal constitutional “floor” — to use the famous metaphor that Justice Brennan developed to describe what he viewed as the ideal relationship between state and federal constitutional law.21×21. William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535, 550 (1986). Instead, they reflect and, in some cases, explicitly articulate a different view of how it is that the interests the First Amendment protects — chief among these, the interest in democratic flourishing, but also the interest in individual self-expression — should be realized. The result is a distinct and vibrant tradition of free speech law — and one that, as I show in what follows, is often quite difficult to reconcile with the principles that undergird the modern First Amendment cases.

Recognizing as much is important not only as a descriptive matter but also as a doctrinal one. This is because in few other areas of constitutional law does the Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important nonconstitutional mechanisms that legislators have traditionally used to promote it. This is true even though the political and cultural power of the non–First Amendment body of free speech law has made the Court loath in many contexts to constrain its application, even when doing so is difficult to justify under existing First Amendment principles.

The result is an inconsistent body of free speech law that manages to reconcile the First Amendment and non–First Amendment free speech traditions only by implausibly denying in many cases that non–First Amendment free speech laws affect any significant free speech interests at all. This is a problem not only because it produces incoherent doctrinal distinctions but also because it permits the Court to proclaim a commitment to principles — in particular, the principle of free speech laissez-faire — that in reality it cannot sustain.

To craft a First Amendment doctrine that is capable of adequately protecting freedom of speech in our complex democratic society, it is necessary to first understand how that freedom of speech has in fact historically been protected. That is the task that this Article takes up. It proceeds in three parts. Part I explores the history and present operation of some of the laws that make up the non–First Amendment free speech tradition. Part II examines the implications of the non–First Amendment free speech tradition for how we think about the present, and the past, of freedom of speech in the United States. Finally, Part III argues that the failure of scholars to pay attention to the non–First Amendment free speech tradition has made it too easy for the Supreme Court to claim that the American free speech tradition is laissez-faire, when the reality is far more complicated.


* Assistant Professor of Law and Herbert and Marjorie Fried Teaching Scholar, the University of Chicago Law School. Thanks to Kate Andrias, Amy J. Cohen, Omar Kutty, Daphna Renan, Mike Seidman, Geoffrey Stone, Nelson Tebbe, Laura Weinrib, and participants at the University of Chicago Work-in-Progress Workshop, the Free Expression Scholars Conference at Yale University, and the American Constitutional Society Board of Academic Advisors Paper Workshop for helpful comments. A special thank you to Elisabeth Mayer, Lauren Nudelman, and Osama Alikhawaja for excellent research assistance, and to the superlative editors at the Harvard Law Review.